To fight or not to fight is not really the question. When things aren’t amicable in a divorce it can turn into a battle of wills, with both parties fighting for what they feel is rightfully theirs. Things can get ugly and nasty, with emotions getting the better of both sides. These fights ultimately end up in the courtroom, can drag on for years and in the end, the only winners are the lawyers.

So, the question is not whether to fight for what you want out of the divorce, but rather how can you get the best outcome with the least amount of stress and cost. To litigate or not to litigate, that is the real question.

We all want what is rightfully ours or when children are involved, what is in their best interest. But in divorce, both parties don’t always come out equal. More often than not, sacrifices must be made (on both sides) in order to move forward with your life.

When you can’t agree on the division of assets, what to do with the matrimonial home, custody of the children, or even who gets the dog, then third parties need to get involved. This doesn’t mean you have to "lawyer up" and head to court. In fact, this is the last thing you want to do.

Staying Out of Court

There are a number of options for resolving disputes between parties separating or divorcing that I discussed in a previous post, such as mediation, arbitration or collaborative family law. In all cases, however, you should engage a family lawyer to ensure you understand your rights in whatever route you take.

Mediation, in particular, is a common legal alternative to litigation. In addition to being faster and cheaper, it is also:



• fair and neutral, treating both sides equally
• private - no public airing of dirty laundry
• focused on problem-solving, rather than determining a "winner"

However, mediation is not possible unless both parties agree to it. It is also not appropriate in cases of domestic violence or abuse, where there is an uneven balance of power, intense conflict or an unwillingness to compromise.

Collaborative family law is another great alternative to resolving disputes out of court and where mediation is not appropriate. Each party hires a lawyer trained in collaborative practice, who may also bring in additional neutral parties to handle other aspects of the divorce, such as a financial specialist, a child specialist and even a real estate specialist.

This team approach ensures all aspects of the divorce are handled by specialists, all working together to resolve matters out of court. In fact, part of the collaborative process is that all parties agree to not go to court. There are many benefits to this collaborative approach, including:

• a durable and controlled outcome since you’ve worked together to resolve issues, rather than having a court decide one for you
• a team focused on the welfare of the entire family, reducing the negative effects of divorce, especially where children are concerned
• cost savings when compared to court battles that can drag on for years

When to Litigate

There are times, however, when the only option is court. If one or both parties cannot agree to work together to come to some kind of agreement with the help of a third party, it may come down to a judge having to make a decision.

For example, in cases of domestic abuse, uncontrolled mental illness or addiction, or one party simply refuses to negotiate, litigation may be the best and only option.

Going to court is expensive and can drag out your divorce for years. If it is your only option, however, there are ways to keep your costs down. For example, avoid contacting your lawyer for every issue unless it is a real emergency, as all this communication time is billable. Make sure you have your financials in order and disclose everything to your lawyer as this is the biggest hurdle in getting procedures underway.

Final Thoughts

Divorce can be a messy process, with lots of emotions and hurt on both sides. But the more you can work together towards a resolution, the more positive the outcome will be and the better you will be able to move on with your life. 

Staying out of court also helps remove that post-divorce awkwardness that can occur at special family events like birthday parties, graduations, weddings and baby showers. Instead, they can become a time of joy that you can celebrate together.